Opinion
2012-06-20
The PEOPLE, etc., respondent, v. Justin VISCONTI, appellant.
Donald T. Rollock, Mineola, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Berk and Joseph Mogelnicki of counsel), for respondent.
Donald T. Rollock, Mineola, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Berk and Joseph Mogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Peck, J.), rendered July 26, 2011, convicting him of attempted grand larceny in the second degree, upon his plea of guilty, and imposing sentence, including restitution in the sum of $20,000.
ORDERED that the judgment is modified, on the law, by vacating the provision of the sentence directing the defendant to pay restitution in the sum of $20,000 and substituting therefor a provision directing the defendant to pay restitution in the sum of $15,000; as so modified, the judgment is affirmed.
By pleading guilty, the defendant forfeited his right to judicial review of his claim that the grand jury proceeding was rendered defective by the improper introduction of purported business records ( see People v. Hansen, 95 N.Y.2d 227, 231–233, 715 N.Y.S.2d 369, 738 N.E.2d 773;People v. Di Raffaele, 55 N.Y.2d 234, 240, 448 N.Y.S.2d 448, 433 N.E.2d 513;People v. Ortiz, 84 A.D.3d 839, 840, 922 N.Y.S.2d 192;People v. Nordahl, 46 A.D.3d 579, 580, 846 N.Y.S.2d 622;People v. Kalu, 45 A.D.3d 699, 844 N.Y.S.2d 881).
The County Court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty ( see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797;People v. Amanze, 87 A.D.3d 1159, 929 N.Y.S.2d 876;People v. Wiedmer, 71 A.D.3d 1067, 896 N.Y.S.2d 686;People v. McGhee, 62 A.D.3d 1027, 878 N.Y.S.2d 911;CPL 220.60 [3] ). The record reflects that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty ( see generally People v. Catu, 4 N.Y.3d 242, 244–245, 792 N.Y.S.2d 887, 825 N.E.2d 1081;People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Haffiz, 77 A.D.3d 767, 768, 909 N.Y.S.2d 490;People v. Rhodes, 62 A.D.3d 815, 816, 878 N.Y.S.2d 773).
As the People correctly concede, the amount of restitution imposed must be modified to conform to the County Court's determination at the restitution hearing ( see People v. Hooten, 81 A.D.3d 1384).